Abbas Khan vs Central Bureau Of Narcotics

These appellants were tried along with two other accused by the

Special Judge, N.D.P.S., Mandsore(M.P.) for the offences punishable under

Section 18 read with Section 8 of the Narcotic Drugs and Psychotropic

Substances Act, 1985 (for short 'the Act'). The prosecution case was that the

Superintendent-M.C.Vijay of the Central Bureau of Narcotics, along with

other officers, were on patrol duty on 1.5.1997 and at about 9.45 p.m. they

intercepted the truck-DIG 4753. Two persons were in the truck and when

they stopped the truck and thereafter started running away and the

Inspector A.K.Tulsidasan apprehended them. The truck was searched in the

presence of the witnesses and it was found that 2.10 KGs of Opium and 8

KGs of Dodachura were also found in the truck. The officers prepared a

mazhar and seized the articles and a case was registered against two accused

viz. Shri Hardeo Singh and Daljeet Singh. On questioning these two accused,

officers came to know that Opium was sold by the present appellants

Abbas 2

Khan and Azam Khan. P.W.6 issued a notice under Section 67 of the Act to

the appellants and their statements were taken. In their statements they

admitted having sold Opium to other accused who were also travelling in the

truck.

After the trial the Special Judge found all the four guilty under

Section 18 of the Act and they were sentenced to undergo 10 years rigorous

imprisonment with a fine of Rs.1 lac each. In the appeal filed by the

accused, the High Court confirmed the conviction. The first and second

accused Hardeo Singh and Daljeet Singh did not prefer any appeal while

accused nos.3 and 4 have filed the present appeals before this Court.

Heard both sides.

The prosecution relied on the admission made under Section 67

of the Act by these two accused before P.W.6 but we notice that the

contraband articles allegedly seized from the first and second accused were

not shown to the present two appellants and there is no evidence to show

that the very same articles were seized by the officers in the course of

investigation. There is practically no evidence to show as to how much

quantity of articles were allegedly sold by these appellants. However, we do

not think that the statements made by these accused are inadmissible in

evidence as they were made under Section 67 of the Act. At the same time

the evidence adduced would only prove that they had dealt with narcotic

drugs and to that extent the admission is valid. As the 3

quantity itself is not proved, one could only say that it is not possible to

assume that they were dealing with any commercial quantity of contraband

articles, which offence by itself is of a very serious nature. The prosecution

should have produced better evidence to sustain such conviction.

Under the above circumstances, we hold that the accused could

only be convicted under Section 18(b) of the Act. We are told that the

appellants have already undergone a fairly long period of sentence. There is

no evidence that they were dealing with any commercial quantity of these

contraband articles. Therefore, we confirm the conviction. In our opinion,

the sentence already undergone by the appellants is sufficient to meet the

ends of justice. We direct the appellants to be released forthwith, if not

required in any other case. Learned counsel for the appellants submits that

the fine imposed is also not paid so far. The fine so imposed upon the

appellants is also waived off.

The appeals are disposed of accordingly.

...............CJI.

(K.G. BALAKRISHNAN)

.................J. (P. SATHASIVAM)

.................J. (J.M. PANCHAL)

NEW DELHI;

14TH JANUARY, 2009.